FARIELLO v. CAMPBELL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

August 6, 1994

SALVATORE FARIELLO, Plaintiff,
v.
GRACE CAMPBELL, in her personal capacity, THERESA MULLINS, in her personal capacity, WILLIAM EKADIS, in his personal capacity, DAVID FREUNDLICH, in his personal capacity, and an UNKNOWN LAW CLERK in the Law Department of the Family Court, State of New York, Suffolk County, in his or her personal capacity, Defendants.

The plaintiff pro se owns a printing business, and publically advocates the supremacy of "fathers' rights" based of his interpretation of the Old Testament. The plaintiff has, for the fourth time, brought before this Court a vexatious and harassing federal civil rights lawsuit regarding certain "conspiratorial" acts by the defendants, who are associated with the Family Court of Suffolk County and include a judge, a hearing examiner and a court clerk. The first two such lawsuits were respectively dismissed by the Court on November 5, 1992 and May 8, 1993. The latter decision is reported at Fariello v. Rodriguez, 148 F.R.D. 670 (E.D.N.Y. 1993), aff'd on opinion below, 22 F.3d 1090 (2d Cir. 1994). The third suit was voluntarily withdrawn by Fariello and closed on June 16, 1994, after this Court declined to issue a preliminary injunction prohibiting further proceedings in the Family Court against Fariello.

The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, or in the alternative for summary judgment in their favor. For the reasons stated below, the Court grants the defendants' alternative motion for summary judgment, and dismisses the plaintiff's complaint as a matter of law.

BACKGROUND

The plaintiff Salvatore Fariello ("Fariello") and his ex-wife Karen Marotta ("Marotta") were married on January 1, 1971. Their son Jared was born in 1978. In 1981, Fariello and Marotta executed a separation agreement, which was not converted into a divorce judgment. Marotta subsequently commenced a divorce action in the New York State Supreme Court, Suffolk County, in 1982, and a judgment of divorce was granted on March 5, 1982. The judgment required, among other things, that Fariello pay $ 40 per week in child support, half directly to Marotta, and half to a trust account for Jared. The State Supreme Court did not retain jurisdiction for any modifications of the divorce judgment.

The contempt hearing resumed on August 18, 1993. According to the Family Court docket sheet, Hearing Examiner Ekadis declined to so order the subpoenas requesting the testimony of Mr. Heepe, Hearing Examiner Rodriguez and Judge Abrams, because there was no offer of proof. Fariello refused to be put under oath during the hearing, and instead requested to see a judge with respect to the subpoenas. Marotta testified at the contempt hearing. The Hearing Examiner found her testimony regarding Fariello's willful failure to pay the support to be clear and convincing, and recommended that a judge proceed with the contempt hearing and confirm Marotta's testimony pursuant to New York Family Court Act section 454(3)(a). The matter was immediately sent to Family Court Judge David Freundlich.

Before Judge Freundlich, Fariello attempted to raise the issue of the Hearing Examiner's declination to so order the three subpoenas, as well the issues of modifying the child support, custody and visitation segments of his divorce judgment. Judge Freundlich refused to hear Fariello on these issues, stating that the only issue before him was the contempt proceeding. See Transcript of Proceedings before Judge Freundlich, August 18, 1993, at pp. 22 and 24. Judge Freundlich reviewed a tape of the Hearing Examiner's contempt hearing and confirmed the findings, holding Fariello in willful contempt of the March 27, 1991 order of support. At that time Fariello reiterated that, although he could make the arrears and support payments, he would not obey the support order for religious reasons, and sought to link any payment by him to a modification of the support order, as well as the terms governing Jared's custody. Judge Freundlich then sentenced Fariello to eleven days in the Suffolk County Jail, pursuant to Family Law section 454(3)(a).

The Present Action.

Based on the circumstances surrounding the April 15, 1993 and August 18, 1993 contempt hearings and his sentencing, Fariello commenced a second federal action by filing the complaint in the present case pursuant to 42 U.S.C. § 1983 against Grace Campbell, Theresa Mullins, William Ekadis, David Freundlich and an Unknown Law Clerk in the Family Court, in their personal capacities. The complaint alleges that the defendants violated Fariello's First Amendment, Fourth Amendment, Sixth Amendment, Equal Protection and Due Process rights under the United States Constitution. In addition to the various causes of action under section 1983, the complaint also pleads causes of action for conspiracy to violate Fariello's civil rights under 42 U.S.C. §§ 1985(2) and (3), and neglect to prevent wrongs committed against Fariello pursuant to 42 U.S.C. § 1986. In all, the complaint alleges eight federal causes of action against each defendant. Fariello has also added state law claims against all of the defendants for intentional infliction of emotional distress, false arrest and false imprisonment. Moreover, as against the defendants Campbell, Ekadis and Freundlich, Fariello alleges a cause of action for neglect and willful failure to exercise ministerial duties.

The following allegations concerning the defendants' actions form the essential basis of Fariello's complaint:

2. Similarly, Judge Freundlich's declining to so order the three subpoenas constitutes a failure to perform a ministerial act. Complaint, PP 33.

3. The contempt proceeding was held without allowing Fariello an opportunity to produce witnesses on his behalf. Complaint, P 21.

4. By bringing him before Judge Freundlich on August 18, 1993, Fariello was denied his right to an appeal of Hearing Examiner Ekadis' recommendation to the Family Court judge, concerning the finding that Fariello was in willful contempt of the support order of March 27, 1991. Complaint, P 38.

5. There is no order of September 27, 1991, and therefore Fariello could not have been held in contempt of violating any such order. Complaint, P 40.

6. The Family Court of the State of New York, County of Suffolk, "harbors a gender-based discriminatory animus against divorced fathers as a class," and "has a discriminatory animus against Christians as a class who believe and express the belief that the laws of God as stated in the Bible transcend the authority of the secular courts." Complaint, PP 45-47.

7. There is a class-based discriminatory animus against non-attorney, pro se litigants as a class in New York courts. Complaint, P 48.

As a result of these allegations, Fariello demands $ 5 million in damages from every defendant, on each of the eleven causes of action alleged in the complaint, for a total demand of $ 275 million.

The Present Motions.

The defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative to grant summary judgment in their favor pursuant to Fed. R. Civ. P. 56(b), on the grounds that: (1) the Court lacks the subject matter jurisdiction to hear this case, because the plaintiff is in effect appealing the ruling of the state court and federal courts lack the statutory authority to hear appeals from decisions of the state court; (2) all of the defendants are subject to absolute judicial immunity from suit; and (3) the plaintiff has not stated any federal claims upon which relief can be granted.

The plaintiff opposes the motion, and contends that the Court has subject matter jurisdiction to hear this case on the basis of the section 1983 claims. According to Fariello, the complaint has sufficiently alleged facts to support his causes of action alleging multiple violation of his constitutional rights. Moreover, Fariello contends that the defendants are not immune from liability under section 1983, because the duties they allegedly transgressed -- basically, not signing the subpoenas and proceeding with the contempt hearing without allowing him an opportunity to present his defenses or respond to the Examiner's findings -- were ministerial in nature.

While the defendants' motion to dismiss was pending, the defendant filed three additional motions to amend the complaint.

In the first motion to amend the complaint, Fariello moves to add a clerk of the Family Court, Gail Kohn, as a defendant. According to Fariello, Gail Kohn refused to release a copy of the order of commitment to Fariello's present wife on August 19, 1994. As a consequence of this alleged refusal, Fariello contends that he was denied relief by the Appellate Division of the New York State Supreme Court, and remained incarcerated for ten days. As with all the other defendants, Fariello claims that Kohn had a ministerial duty to release the order of commitment to Fariello's wife, and participated in the purported conspiracy along with the other defendants to deprive him of his constitutional rights.

In the same motion, Fariello also moves to add the allegation that the defendants acted with personal malice towards him, and that his damages include mental anguish, suffering, shame and humiliation, ridicule and scorn, mental degradation, indignity and disgrace, damage to reputation, interruption and loss of business, loss of earnings and loss of marital consortium.

However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Western World, 922 F.2d at 121. Although the non-moving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment, Fed. R. Civ. P. 56(c) and (e) provide that the non-moving party cannot rest on the pleadings but must set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions on file showing there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983), the United States Supreme Court held that federal district courts do not have jurisdiction "over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional." Id., 103 S. Ct. at 1317 (emphasis supplied). Rather, pursuant to 28 U.S.C. § 1257(a), federal appellate review of state court judicial decisions may only be had in the Supreme Court. Feldman, 103 S. Ct. at 1317. See also Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S. Ct. 1739, 1742-43, 26 L. Ed. 2d 234 (1970) (lower federal courts do not have the power to directly review cases from state courts); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 150, 68 L. Ed. 362 (1923) (the district court does not possess appellate jurisdiction over decisions of the state courts); Texaco, Inc. v. Pennzoil, 784 F.2d 1133, 1141-42 (2d Cir. 1986), rev'd on other grounds, 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987).

In Feldman, the respondents sought admission to the District of Columbia Bar, and petitioned the District of Columbia Court of Appeals -- the functional equivalent of a state's highest court in that jurisdiction -- for the waiver of a bar admission rule which required applicants to have graduated from an accredited law school. The District of Columbia Court of Appeals denied the petition. The respondents filed suit in the federal district court, alleging that by not waiving the bar admission requirement, the District of Columbia Court of Appeals violated their Fifth Amendment due process rights. They also attacked the bar rule as facially unconstitutional. The district court dismissed the complaint for lack of subject matter jurisdiction, on the ground that to do otherwise would place it in the position of reviewing an order of the District of Columbia's highest court. See 103 S. Ct. at 1308. The United States Court of Appeals for the District of Columbia Circuit reversed, holding there was jurisdiction.

The only exception to what has become known as the Rooker-Feldman doctrine, is where a federal statute authorizes federal appellate review of final state court decisions. One such statute is the habeas corpus statute governing challenges to state sentences, 28 U.S.C. § 2254. See Pennzoil, 784 F.2d at 1142, n.6; Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993) (Rooker-Feldman forbids federal district court appellate review of state court judgments in the guise of collateral attacks when no federal statute authorizes review), reh'g en banc denied, (7th Cir. 1993), cert. denied, 126 L. Ed. 2d 661, 114 S. Ct. 694 (1994).

Furthermore, a plaintiff may not seek a reversal of a state court judgment simply by recasting his complaint in the form of a civil rights action pursuant to 42 U.S.C. § 1983. Ritter, 992 F.2d at 754 (citing cases); Tang v. Appellate Division of New York Supreme Court, First Department, 487 F.2d 138, 142 (2d Cir. 1973), cert. denied, 416 U.S. 906, 40 L. Ed. 2d 111, 94 S. Ct. 1611 (1974). In discussing whether constitutional claims raised in a section 1983 action that collaterally attacks a state court judgment, but where the constitutional claims were not raised in the state court proceedings, would confer federal subject matter jurisdiction, the Supreme Court in Feldman held that there was no such jurisdiction if the section 1983 claims were "inextricably intertwined" with the state court judgment:

If the constitutional claims presented to a United States district court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, then the district court is in essence being called upon to review the state-court decision. This the district court may not do.

Whether a federal claim is "inextricably intertwined" with a state court judgment varies with the circumstances of a particular case. The crucial point, however, is whether "the district court is in essence being called upon to review the state-court decision." Feldman, 460 U.S. at 483-84 n.16, 103 S. Ct. at 1316 n.16; Ritter, 992 F.2d at 754. Two standards are applied by courts to determine how "inextricably intertwined" the federal claim is to a state court judgment.

The first standard looks to see whether the constitutional claims are "separable from and collateral to" the merits of the state court judgment, in the same way an order is separable and collateral from the merits of a case for the purpose of allowing an interlocutory appeal before the merits of the case are finally adjudged. See Pennzoil, 481 U.S. at 21, 107 S. Ct. at 1531 (Brennan J., concurring) (citing Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949)); Ritter, 992 F.2d at 754. The second standard looks to see how dependent the merits of the federal claim are on the state court decision. Under this standard,

a federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state wrongly decided the issues before it. Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state court judgment.

In the present case, Fariello alleges that his constitutional rights were essentially violated because: (1) Examiner Ekadis and Judge Freundlich did not sign the three subpoenas requesting the testimony of Judge Abrams, Examiner Rodriguez and clerk Heepe, (2) Fariello was not allowed to present his "visitation" defense at the contempt hearing, either before the Examiner Ekadis or Judge Freundlich, (3) by being immediately brought before Judge Freundlich, Fariello was denied an appeals process because he was not provided with written findings of fact or an adequate opportunity to contest Examiner Ekadis' finding of contempt, (4) there was no underlying violation of the support order dated September 27, 1991, and (5) the Family Court discriminated against Fariello in the contempt proceeding because he was a pro-se litigant, a Christian, and a father who advocates "father's rights."

Even assuming that all of these allegations are true, it is this Court's view that in the present civil rights suit the Court is "in essence being called upon to review the state court decision." Feldman, 460 U.S. at 483 n.16, 103 S. Ct. at 1315 n.16. In some instances, Fariello challenges the Family Court's interpretation of certain statutes as unconstitutional. In other instances, the constitutional claims by Fariello are "inextricably intertwined" to the state court judgment and proceedings, in that they "can succeed only to the extent that the state court wrongly decided the issues before it," and "are predicated upon a conviction that the state court was wrong." Pennzoil, 481 U.S. at 25, 107 S. Ct. at 1533.

The purpose of the rule of absolute judicial immunity is to protect the integrity of the judicial process, by allowing judges to "be at liberty to exercise their functions with independence and without fear of consequences." Pierson, 386 U.S. at 554, 87 S. Ct. at 1218. Thus, the rule applies even where the judge is accused of acting maliciously or corruptly, id., however erroneous the act may have been, however injurious in its consequences it may have proved to the plaintiff, and "despite any 'informality with which [the judge] proceeded,' and . . . any ex parte feature of the proceeding." Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507 (1985) (quoting Sparkman, 435 U.S. at 363 and n.12, 98 S. Ct. at 1108 and n.12).

In deciding whether an act is judicial for purposes of immunity, the court is guided by a "functional" approach to immunity law. Cleavinger, 474 U.S. 201-02, 106 S. Ct. at 501. That is, "immunity rests on functional categories, not on the status of the defendant. Absolute immunity flows not from rank or title or 'location within the Government,' but from the nature of the responsibilities of the individual official." Id. Factors a court should consider in determining judicial immunity include the nature of the act taken, namely whether it is a function normally performed by a judge, and the expectations of the parties, namely whether they dealt with the judge in his judicial capacity. Sparkman, 435 U.S. at 362, 98 S. Ct. at 1107. Other factors include (i) the adversary nature of the process, (ii) the correctability of error on appeal, (iii) the importance of precedent, and (iv) the presence of safeguards that reduce the need for private damage actions as a means of controlling unconstitutional conduct. Cleavinger, 474 U.S. at 202, 106 S. Ct. at 501.

It is beyond doubt that according to the above recitation of the law, each of the defendants, Family Court Judge Freundlich, Hearing Examiner Ekadis, Chief Court Clerk Grace Campbell, law clerk Theresa Mullins, and the Unknown law clerk are absolutely immune from suit in this case. Each of these persons was performing a judicial function with respect to the acts alleged in the complaint to constitute a "ministerial" duty, and which allegedly deprived Fariello of his constitutional rights. Moreover, none of the defendants acted in the clear absence of all jurisdiction.

Indeed, the very case Fariello relies on to support his contention that the defendants are not immune from suit, Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988), undermines his case and supports the defendants' immunity. In Forrester, an Illinois state court judge was accused in a section 1983 damages suit of sex discrimination in the demotion and firing of a court probation officer. The Supreme Court held that the judge was not immune from suit in that case, because administrative decisions involving the supervision of court employees are non-judicial functions. Id., 484 U.S. at 229, 108 S. Ct. at 545. In the course of explaining the scope of judicial immunity, the Supreme Court explained that absolute immunity applied to the exercise of a judge's judicial functions, despite the "informal and ex parte nature of the proceeding," and any "allegation of malice or corruption of motive." Id., 484 U.S. at 227, 108 S. Ct. at 544.

In the present case, the defendants were not acting in any administrative, legislative or executive function, as was the state court judge in Forrester. Rather, in holding the contempt hearing under section 454, Hearing Examiner Ekadis and Judge Freundlich were acting in a judicial function, within the scope of their jurisdictional competence. Contrary to Fariello's contentions, Forrester supports the conclusion that the defendants are entitled to absolute judicial immunity.

Indeed, in this Court's view there is absolutely no evidence that a conspiracy exists in the Family Court to violate the rights of pro se fathers, and Fariello's complaint warrants dismissal because it is another disguised attempt to have this federal Court review the Family Court proceedings by way of a highly questionable civil rights complaint. See Fariello v. Rodriguez, 148 F.R.D. at 675-76 (frivolous civil rights action arising out of domestic relations dispute should be dismissed), citing Hernstadt v. Hernstadt, 373 F.2d 316 (2d Cir. 1967). However, because the Court does not reach the issue of the alleged constitutional violations, to the extent that such violations may have occurred as a result of the defendants' conduct, the matter is for the state appellate courts to review in the first instance, and the United States Supreme Court if it grants certiorari.

The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial, Panzella v. Skou, 471 F. Supp. 303, 305 (S.D.N.Y. 1979), and "unless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend." Lerman v. Chuckleberry Pub., Inc., 544 F. Supp. 966, 968 (S.D.N.Y. 1982), rev'd on other grounds sub nom., Lerman v. Flynt Distributing Co., 745 F.2d 123 (2d Cir. 1984).

In light of the Court's rulings that it does not have subject matter jurisdiction over this case, and that the defendants are protected from a civil damages suit by absolute judicial immunity, each of the motions by Fariello to amend the pleadings is futile, and therefore must be denied.

The allegations in Fariello's motions that seek to add charges of personal malice towards Fariello, mental anguish, an elaboration of the "ministerial duties" that Examiner Ekadis and Judge Freundlich are alleged to have failed to perform, and new evidence concerning the Family Court's procedures with respect to contempt hearings on violation of support orders, have essentially already been considered by the Court in arriving at its decision to dismiss the complaint. These additional allegations do not add anything to the relevant analyses that would alter the Court's rulings with respect to the Rooker-Feldman doctrine or absolute judicial immunity. For the same reasons, adding Family Court clerk Gail Kohn as a defendant would also be futile.

Accordingly, the motions by Fariello to amend the Complaint in order to (1) add Gail Kohn as a defendant, (2) elucidate the allegations against Examiner Ekadis and Judge Freundlich, and (3) supplement the pleadings based on new evidence, are denied.

SANCTIONS AND CONCLUSION

As stated at the beginning of this decision, this is the fourth action brought by Fariello before this Court to review a state court decision in the guise of alleging a conspiracy to violate his constitutional rights. In this Court's view, these actions have been groundless, vexatious, and an instrument of harassment. They have also expended a considerable portion of the Court's judicial resources. Accordingly, the Court believes it is necessary to impose sanctions on Fariello. See Martin-Trigona, 9 F.3d at 227 ("Occasionally . . . the tactics of certain individuals so far exceed the bounds of tolerable litigation conduct that courts have responded with specially crafted sanctions that impose severe limitations on the opportunity of such individuals to pursue their penchant for vexatious litigation.").

The plaintiff has been previously warned by the Court that sanctions may be imposed upon him if he files actions without an arguably "objectively reasonable" basis. See Rodriguez, 148 F.R.D. at 687-88. One sanction imposed by courts faced with similar circumstances is to require the vexatious litigant to seek leave of the Court before filing any other cases with the court. See Martin-Trigona, 9 F.3d at 229 (citing cases). Such pre-filing review allows a court to screen a proposed newly-filed action by the pro-se litigant, in order to determine whether it is an attempt at filing another vexatious complaint or a complaint with an arguably objectively reasonable basis. It is this kind of pre-filing review sanction that the Court now imposes upon Fariello.

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